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2013 DIGILAW 309 (MAD)

S. Chandrasekaran v. P. Kalimuthu

2013-01-10

G.RAJASURIA

body2013
Judgment :- 1. This Civil Revision Petition has been filed to get set aside the judgment and decree dated 16.10.2012 passed in Election O.P.No.6 of 2011 by the learned II Additional District and Sessions Judge, Trichirappalli. 2. A resume' of facts absolutely necessary and germane for the disposal of this Civil Revision Petition would run thus: (i) The election for the post of Village President of Nanjai Sankenthi Village took place on 19.10.2011. The first respondent/petitioner - Kalimuthu contested the election in 'Scissors' symbol, whereas the revision petitioner/first respondent - Chandrasekaran contested the election in 'Lock and Key' symbol. The polling took place on 19.10.2011. The counting of votes was carried out on 21.10.2011 at Dalmiapuram Higher Secondary School in Pullampadi Union. After counting of the votes, the Returning Officer declared the revision petitioner/first respondent - Chandrasekaran as the person who won the election for the post of Village President of Nanjai Sankenthi Village in view of he having secured more votes than his opponent. The first respondent herein/petitioner -Kalimuthu seriously raised his objection relating to the counting process and sought for recounting of votes, but that was not responded to by the Officials. Whereupon, Election O.P.No.6 of 2011 was filed before the II Additional District and Sessions Judge, Trichy. The matter was contested. The revision petitioner/first respondent - Chandrasekaran filed his counter affidavit. The respondents 2 to 4 therein also filed their joint counter affidavit resisting the petition. (ii) Up went the enquiry, during which on the side of the first respondent/petitioner -Kalimuthu, P.W.1 to P.W.3 were examined and Exs.P.1 to P.6 were marked and on the side of the revision petitioner/first respondent - Chandrasekaran, D.W.1 and D.W.2 were examined, but no documentary evidence was let in. (iii) Ultimately, the District Judge allowed the said application and passed an order for recounting. However, in the operative portion of the order, he stated thus: “Tamil” Virtually, the true translation as well as the understanding of the aforesaid order, will be to the effect that the declaration of the result in favour of the revision petitioner/first respondent - Chandrasekaran was void and recounting was ordered. 3. Being aggrieved by and dissatisfied with the same, the revision petitioner/first respondent - Chandrasekaran, filed this Civil Revision Petition challenging and impuging the order of the lower Court on various grounds. 4. 3. Being aggrieved by and dissatisfied with the same, the revision petitioner/first respondent - Chandrasekaran, filed this Civil Revision Petition challenging and impuging the order of the lower Court on various grounds. 4. The learned Counsel for the revision petitioner/first respondent - Chandrasekaran, would pyramid his arguments thus: The lower Court was not justified in simply declaring the result announced in favour of the revision petitioner/first respondent as void even before recounting. Over and above that, the recounting itself was not required in view of no illegality having been proved to have been perpetrated at the time of counting of votes. The reason adduced in the petition filed by the first respondent/petitioner - Kalimuthu was vague as vagueness could be. Simply because he demanded recounting, the question of recounting cannot be ordered. There should be prima facie evidence to demonstrate and display that some illegalities were perpetrated at the counting centre or in the process of counting, but no such factual scenario could be gleaned. The defeated candidate Kalimuthu's self-serving documents namely Exs.P.1 to P.3 were marked and he contended as though while counting process was going on, he noted down the number of votes in his favour which did not tally with the votes ultimately declared in his favour by the Officer concerned. Recounting cannot be ordered simply for the sake of asking for it. Even the Compact Discs produced before this Court would not in any way denote and connote that there was any law and order problem occurred at the counting centre and that there was any miscounting or wrong counting, etc. Simply in a parrot like fashion, the first respondent/petitioner - Kalimuthu demanded for recounting before the Returning Officer and that it does not mean that the Returning Officer ought to have responded to his request. If such sort of requests are accepted, then no finality can be achieved at the counting centre and the democratic process would get throttled. Accordingly, he would pray for setting aside the order of the lower Court and for the dismissal of the Election O.P.6 of 2011. 5. If such sort of requests are accepted, then no finality can be achieved at the counting centre and the democratic process would get throttled. Accordingly, he would pray for setting aside the order of the lower Court and for the dismissal of the Election O.P.6 of 2011. 5. Per contra, in a bid to slap down and torpedo the contentions as put forth and set forth on the side of the revision petitioner/first respondent -Chandrasekaran, the learned Counsel for the first respondent/petitioner -Kalimuthu, would advance his arguments which could tersely and briefly be set out thus: A mere running of the eye over the oral as well as the documentary evidence available on record, would exemplify and demonstrate, display and portray that all was not well with the counting process. It is not as though on imaginary grounds, the said Kalimuthu raised his objection at the counting centre. The Compact Discs displayed before this Court would unambiguously and unequivocally demonstrate and display that sincerely, he raised his objection even before the announcement of the result. However, he was made to wait from 03.00 p.m., on that date till late at night and thereafter, he was unceremoniously removed from the hall. During cross-examination, R.W.2 - Ambrose, the Returning Officer would candidly and categorically admit about the factum of the said Kalimuthu having demanded for recounting, but that was negatived purely on the ground that the difference in votes, was only meagre. Whereas the same Returning Officer ordered recounting and actually recounted the votes in respect of one other Panchayat. In such a case, it is a clear case of discrimination on the part of the public official, warranting interference, and accordingly, the learned District Judge taking into consideration the prevaricative stands of the Returning Officer, ordered recounting. No doubt, the learned District Judge even before recounting, declared the result announced in favour of the revision petitioner/first respondent -Chandrasekaran as void, but such a measure should have been resorted to, after recounting. 6. The point for consideration is as to whether there is any illegality or perversity in the order passed by the learned District Judge in declaring the result announced in favour of the revision petitioner/first respondent -Chandrasekaran, as void and in ordering recounting of votes for the reasons set out in his impugned order? The Point: 7. 6. The point for consideration is as to whether there is any illegality or perversity in the order passed by the learned District Judge in declaring the result announced in favour of the revision petitioner/first respondent -Chandrasekaran, as void and in ordering recounting of votes for the reasons set out in his impugned order? The Point: 7. By way of fumigating my mind, I would like to refer to the precedents cited on both sides. 8. The learned Counsel for the revision petitioner/first respondent - Chandrasekaran, cited the decision of the Honourable Apex Court in Vadivelu v. Sundaram reported in 2000(IV) CTC 302. An excerpt from it, would run thus: "16. The result of the analysis of the above cases would show that this Court has consistently taken the view that re-count of votes could be ordered very rarely and on specific allegation in the pleadings in the election petition that illegality or irregularity was committed while counting. The petitioner who seeks re-count should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. If only the court is satisfied about the truthfulness of the above allegation, it can order re-count of votes. Secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations of illegality or irregularity in counting. But if it is proved that purity of elections has been tarnished and it has materially affected the result of the election whereby the defeated candidate is seriously prejudiced, the court can resort to re-count of votes under such circumstances to do justice between the parties." 9. The learned Counsel for the first respondent/petitioner -Kalimuthu, relied on the decision of the Honourable Apex Court in Shradha Devi v. Krishna Chandra reported in AIR 1982 SUPREME COURT 1569. An excerpt from it, would run thus: "8. When a petition is for relief of scrutiny and re-count on the allegation of miscount, the petitioner has to offer prima facie proof of errors in counting and if errors in counting are prima facie established a re-count can be ordered. If the allegation is of improper rejection of valid votes which is covered by the broad spectrum of scrutiny and re-count because of miscount, petitioner must furnish prima facie proof of such error. If the allegation is of improper rejection of valid votes which is covered by the broad spectrum of scrutiny and re-count because of miscount, petitioner must furnish prima facie proof of such error. If proof is furnished of some errors in respect of some ballot-papers, scrutiny and re-count cannot be limited to those ballot-papers only. If the re-count is limited to those ballot-papers in respect of which there is a specific allegation of error and the correlation is established, the approach would work havoc in a parliamentary constituency where more often we find 10,000 or more votes being rejected as invalid. Law does not require that while giving proof of prima facie error in counting each head of error must be tested by only sample examination of some of the ballot-papers which answer the error and then take into consideration only those ballot-papers and not others. This is not the area of enquiry in a petition for relief of re-count on the ground of miscount. True it is that “a recount is not granted as of right, but on evidence of good grounds for believing that there has been a mistake on the part of Returning Officer” (see HALSBURY'S LAWS OF ENGLAND, 4th Edn., Vol. 15, para 940). This Court has in terms held that prima facie proof of error complained of must be given by the election petitioner and it must further be shown that the errors are of such magnitude that the result of the election so far as it affects the returned candidate is materially affected; then re-count is directed. What was broadly alleged by the petitioner in the election petition was that where election is held in accordance with the proportional representation by the single transferable vote it would be illegal and erroneous for the Returning Officer to reject as invalid a ballot-paper if after first preference vote is validly cast some error is committed in indicating the remaining preferences. Instances of error set out in paras 14, 15, 17 and 18 spelt out a ground that the ballot-papers which were rejected under Rule 73(2)(d) did not contain or carry any mark or writing by which elector can be identified and that there has been thus improper rejection of a vote otherwise validly cast or which is partially valid. Instances of error set out in paras 14, 15, 17 and 18 spelt out a ground that the ballot-papers which were rejected under Rule 73(2)(d) did not contain or carry any mark or writing by which elector can be identified and that there has been thus improper rejection of a vote otherwise validly cast or which is partially valid. Without allowing inspection of all the disputed ballot-papers the learned Judge has accepted that at least two ballot-papers can be correlated to allegation in paras 15 and 17 which would prove the allegations made in the petition. The learned Judge, however, held that the rejection of these two ballot-papers was correct. A further observation is that even if the rejection of these two ballot-papers is held to be improper, the result of the election so far as returned candidate is concerned is not materially affected. And it would be succinctly pointed out that allegation in para 18 in respect of two other ballot-papers is wholly substantiated. Even at the cost of repetition it must be said that it is not the requirement of law that in respect of each ballot-paper rejected as invalid a specific averment must be so made as to identify the ballot-paper and only those that can be correlated to the allegations in the petition specifically and not generally shall be recounted. That is contrary to the requirement of the Act and the Rules." 10. A mere running of the eye over the aforesaid precedents would unambiguously and unequivocally, highlight and spotlight the fact that recounting cannot be ordered as a matter of course, but there should be prima facie proof of errors in counting and there could be no quarrel over such proposition. 11. Further, I would like to refer to Rule 66 of the Tamil Nadu Panchayats (Elections) Rules, 1995, which is extracted hereunder for ready reference: "66. Recount of votes.- (1) After the completion of the counting and recording in Form 22 the total number of votes polled by each candidate under sub-rule (2) of rule 64, the Returning Officer shall announce the same. Recount of votes.- (1) After the completion of the counting and recording in Form 22 the total number of votes polled by each candidate under sub-rule (2) of rule 64, the Returning Officer shall announce the same. After such announcement, and before the declaration of the result of the election, a contesting candidate or in his absence his election agent, may apply in writing to the Returning Officer for a recount of all or any of the votes already counted stating the grounds on which he demands such recount. (2) On such application being made, the Returning Officer shall decide the matter and may allow the application in whole or in part, or may reject it in toto if it appears to him to be frivolous or unreasonable. (3) Every decision of the Returning officer under sub-rule (2) shall be in writing and contain the reasons therefor. (4) If the Returning Officer decides under sub-rule (2) to allow an application either in whole or in part, he shall- (a) Count the votes again in accordance with his decision; (b) Amend the result sheet in Form 22 to the extend necessary after such recount; and (c) Announce the amendments so made by him. (5) After the total number of votes polled by each candidate has been announced under sub-rule (1) or under sub-rule (4) of this rule, the Returning Officer shall complete and sign the result sheet in Form 22 and no application for a recount shall be entertained thereafter: Provided that no step under this sub-rule shall be taken on the completion of the counting until the candidates or the election agents present at the completion thereof have been given a reasonable opportunity to exercise the right conferred by sub-rule (1)." 12. A mere poring over and perusal of sub-rules (1) and (2) of Rule 66 of the Tamil Nadu Panchayats (Elections) Rules, 1995, would make the point clear that there are two stages in counting; viz., announcement of the number of votes polled by each candidate and thereafter, declaration of the result of the election. In between the two stages, the candidate concerned could seek for recounting of votes. 13. With this in mind, I would like to analyse the matter before me. 14. In between the two stages, the candidate concerned could seek for recounting of votes. 13. With this in mind, I would like to analyse the matter before me. 14. During the pendency of this Civil Revision Petition, the following steps were taken: (i) On 22.11.2012, the District Collector/the fourth respondent was directed to produce the remaining relevant forms/ papers relating to the election under dispute by 29.11.2012. (ii) On 10.12.2012, the District Collector was directed to produce Form No.20 relating to the three polling booths in a sealed cover on 13.12.2012. (iii) On 13.12.2012, the learned Government Advocate produced a sealed cover before this Court, which contained "Tamil’ relating to Booth Nos.101 to 103 and after perusal of both sides, the same was directed to be retained by the Registrar along with Form No.20. (iv) On 20.12.2012, the learned Government Advocate was directed to produce the Compact Discs concerned before this Court. (v) On 03.01.2013, the learned Government Advocate produced the Compact Discs 6 in number, before this Court in a sealed cover and the Compact Disc Nos.1 and 2 were displayed in Open Court through High Court Laptop and thereafter, the Deputy Registrar (Judicial), was directed to display those remaining Compact Discs in the presence of the learned Counsel appearing for both sides as well as the learned Government Advocate and even the respective parties were also allowed to be with their respective learned Counsel. (vi) On 07.01.2013, the Deputy Registrar (Judicial) submitted the report before this Court, which would run thus: "I humbly submit that as directed by the order of this Court made in C.R.P(NPD)(MD) No.2442 of 2012, dated 03.01.2013, the Compact Disc Nos.3 to 6 relating to the above case, were displayed through High Court Laptop before me in the presence of the learned Counsel appearing for both sides, the respective Counting Agents for the petitioner as well as the first respondent and the Returning Officer. I humbly submit that the Compact Disc No.3 contains the video relating to the opening of the ballet boxes, the Counting Staff showing each ballet paper to the Counting Agents who are standing at the other side of the barricades and putting the ballet papers in the boxes concerned. I humbly submit that the Compact Disc No.3 contains the video relating to the opening of the ballet boxes, the Counting Staff showing each ballet paper to the Counting Agents who are standing at the other side of the barricades and putting the ballet papers in the boxes concerned. Likewise, the first part of the Compact Disc No.4 displays the Counting Staff counting, sorting the ballets, showing the ballet papers to the Counting Agents and putting them in the respective boxes and the Compact Disc No.4 also portrays the opening of the postal votes and counting the same in the Returning Officer's room. The Second Part of the Compact Disc No.4 running approximately at 07.30 minutes, displays the discussion of the first respondent namely Kalimuthu with the Returning Officer. The Compact Disc No.5 also refers to the Counting Staff showing the ballet papers to the Counting Agents and sorting them out. It also displays the counting of Postal Votes. The Second Part of the Compact Disc No.5, at 07.06 minutes, shows the first respondent talking loudly with the Returning Officer. The Compact Disc No.6 consists of three Parts and it shows, bringing the ballet boxes from the Strong Room, showing the ballet papers to the Counting Agents and sorting them out in the respective boxes. In the third part of the Compact Disc No.6 running at 08.23 minutes, the first respondent argues with the Returning Officer demanding for recounting." And the matter was directed to be listed today, i.e. 10.01.2013. 15. The learned Government Advocate representing the respondents 2 to 4, as per the order of this Court, produced the Form No.22. In the presence of all, Form No.22 was scrutinized. 16. Heard both sides. 17. In the course of hearing further, I wanted to satisfy myself as to what actually transpired at the time of the said Kalimuthu seeking recounting of votes. Hence, the Compact Disc Nos.4, 5 and 6 were once again displayed in Open Court before me through the High Court Laptop in the presence of all the Advocates concerned and at that time, what I could notice is that the said Kalimuthu incessantly and repeatedly, in addition to strenuously, in a panic-stricken mood, pressed for recounting by specifically contending that as per his observation, he got 108 votes, whereas his opponent got only 98 votes. From different angles, the scenes were videographed and I could see the same in the Compact Disc Nos.4, 5 and 6. Exs.P.1 to P.3 are projected by the revision petitioner/first respondent - Chandrasekaran as the self-serving documents of Kalimuthu. However, the witnessing and watching of the Compact Discs would clearly demonstrate and display that Exs.P.1 to P.3 cannot be labelled or described as self-serving documents. Had Kalimuthu not noted specifically the number of votes in his own way as per Exs.P.1 to P.3, even while counting process was going on, then the question of himself immediately raising objection at that time itself by specifying the number of votes, would have been a well-neigh impossibility. 18. It is quite obvious and axiomatic that the said Kalimuthu and Chandrasekaran are not well informed or educated persons, but they are villagers and in such a case, the question of painting Kalimuthu as the person who acted holus-bolus with mala fide intention at the counting centre, does not arise. 19. The learned Counsel for the first respondent/petitioner -Kalimuthu, would try to project and portray as though the Officers at the behest of some influenced person conducted themselves in a partisan manner or biased manner, but I could see no prima facie evidence in that regard, whereupon a question might arise as to how recounting of votes could be ordered. 20. Objectivity is the hallmark of rendering justice. I remember the popular adage 'It is not enough of justice is done, but it could seem to be done'. 21. While discussing the aforesaid facts, not even for a moment, I proceeded to hold that any fraud or miscounting took place. My adjudication in this case, is mainly based on the fact that immediately after the counting process was over, with details concerning number of votes the defeated candidate namely Kalimuthu approached the Returning Officer and it was not a vague or bald statement. It was not as though he could not see the wood for trees. In such a case, I am of the considered view that in the interest of objectivity, the Returning Officer should have recounted the votes. The Compact Discs would clearly display and portray that Kalimuthu made incessant demands for recounting and such requests were bluntly and flatly refused by the Officials and that such demanding and refusal was going on for a pretty long time. The Compact Discs would clearly display and portray that Kalimuthu made incessant demands for recounting and such requests were bluntly and flatly refused by the Officials and that such demanding and refusal was going on for a pretty long time. Hence, it is quite obvious and clear that Exs.P.1 to P.3, tabulations maintained by the defeated candidate namely Kalimuthu cannot be suspected as the ones emerged as an afterthought. 22. According to the Returning Officer, the following are the details relating to the votes and I would like to extract hereunder Form Nos.20 and 22: Form No.20: “Tamil” “Table” (Tamil) “Tamil” “Table” (Tamil) “Tamil” * * * * * * 23. Earlier, the learned Counsel for Kalimuthu tried to portray and focus that there was absolutely no reference to the postal votes and in order to expound and explain the facts with details, the learned Government Advocate produced the Form No.22 also today, which would refer to the two postal votes also. Notwithstanding the fact that no discrepancy could be noted in the records, yet in view of the fact that there is enough evidence to demonstrate and display that on the date of counting itself, the defeated candidate namely Kalimuthu was made to believe that all was not well with the counting process and that he registered his oral objection and prayed for recounting, I am of the considered view that recounting of votes could be ordered. 24. It is also an admitted fact which could be deduced and discerned from the deposition of R.W.2 -Ambrose, the Returning Officer that the defeated candidate sought for recounting after announcement of the total number of votes polled by each candidate, but before declaration of the result of the election and he was also ready to pay the charges for it; even then, the Returning Officer on the ground that the difference in number of votes obtained by the successful and the defeated candidates was small; he rejected orally such oral request. Such a ratiocination adhered to by the Returning Officer, in my opinion, was not correct. If difference is small, it would be all the more important to order for recounting. 25. Not to put too fine a point on it, a fortiori, recounting is necessary and the learned District Judge cannot be found fault with for ordering recounting. Such a ratiocination adhered to by the Returning Officer, in my opinion, was not correct. If difference is small, it would be all the more important to order for recounting. 25. Not to put too fine a point on it, a fortiori, recounting is necessary and the learned District Judge cannot be found fault with for ordering recounting. Over and above that, before the learned District Judge, all the facts have not been placed, whereupon only the learned District Judge went on discussing about various facts and dilated on various aspects relating to suspicious circumstances. After deep analysis by this Court as set out supra, on balance, recounting would be in commensurate with the democratic process and in the interest of achieving objectivity also. The defeated candidate namely Kalimuthu did not ask for recounting fancifully or on phantasmagorical grounds; in fact, with all earnestness and sincerity by referring to the facts, felt that he got 108 votes, whereas his opponent got 98 votes as per his observations which he made presumably by marking his records namely Exs.P.1 to P.3, he sought for recounting. 26. Wherefore, I do not want to interfere with the discretion exercised by the learned District Judge in ordering recounting of votes. However, even before recounting, the learned District Judge was not justified in declaring the result announced in favour of the revision petitioner/first respondent -Chandrasekaran, as null and void and to that extent, I would like to set aside the order and mandate the learned District Judge to complete the recounting process within a period of fifteen days from the date of receipt of a copy of this order. Whereupon, depending upon the ultimate figures emerging during such recounting, he shall pass further orders strictly in accordance with law and with reference to the prayers as contained in the election petition. The point is answered accordingly. 27. On balance, this Civil Revision Petition is partly allowed to the extent indicated above. Consequently, the connected Miscellaneous Petition is closed. No costs.